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Where in the World is “Home”?  Residency Issues in Family Law

Where in the World is “Home”?  Residency Issues in Family Law

We live in a fast-paced society where new experiences are easily brought to our doorstep via the internet.  And where those who prefer to experience the world first-hand can experience greater opportunities for travel and mobility than ever before.  For this latter group, determining where a person legally “resides” can become complex, as a recent Ontario court decision illustrates.

The spouses were married in California in 1988.   The wife was a citizen of Spain, who held both Canadian and U.S. citizenship as well.  The husband was a sea captain, and apparently moved around a great dea.  After they married, they had four children together, two of whom were born in Spain, with the other two being born in the U.S.

In 2005, the couple bought a condominium in Florida.  The husband lived there in 2008 so that he could accept an on-land teaching position.  The wife and the four children moved there to join him in early 2009.
In the summer of 2009, the husband’s father took ill with a terminal disease, so the husband moved back to Toronto to be near him.  The wife and children followed soon after, and moved into the ailing father’s Toronto condo. Unbeknownst to the wife, however, title to it had been transferred to the husband by this point.

Marital problems between the couple started to brew in late 2009, around the same time the husband’s father passed away.  Eventually, the wife and the children moved into a shelter and stayed there until summer of 2010, when a court order was granted giving the wife permission to move with the children to Florida.  Meanwhile, the husband transferred title to the Toronto condo over to his mother.  

Against this complex background, the wife brought a motion to have the court set aside that transfer, and to declare the Toronto condo a “matrimonial home” for the purposes of the Family Law Act, so that it could be sold and she could obtain about $54,000 in legal costs that was owing to her from the proceeds.

Two geographical questions arose:  

1) whether an Ontario court or a Florida court should hear the issue involving the Toronto condo; and

2) whether the parties’ divorce could be granted in Ontario, given the requirement under the Divorce Act that one of the spouses “has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

By this time, the wife had begun child custody proceedings in Florida.  Eventually, the parties agreed to have all issued litigated in Ontario, but when it came time to serve the husband with the necessary court documents, he showed his address for service being in Florida.

As part of the legal wrangling as to which court (Ontario or Florida) had jurisdiction in connection with the parties’ divorce, the question arose as to whether the husband was “ordinarily resident” in Ontario for at least one year prior to the commencement of the proceeding.   The husband’s affidavit and other evidence on this point was all over the map (pun intended):   he deposed that he had returned to Florida in July and continued to return to Canada to visit his mother periodically.   However, the court found that this was inconsistent with the husband’s earlier assertion that he had already moved out by June.    In yet another set of court documents, the husband claimed that he had still been living in Ontario in July of that same year.   In one affidavit, he swore that he was using his father’s condo at some point, but that he was using a drop box in Florida as his address for service.  Sworn statements contained in various other affidavits had the husband living at three different Florida locations in July.  A September affidavit had him living in the Toronto Condo.

The wife, on the other hand, gave evidence that the husband never moved to Florida at all, and had only visited the children there once in July, at a park, and twice briefly in August.

Meanwhile, the husband asserted that in terms of his custody plans, he intended to have the children live with him in Canada; as an alternative he would move them permanently to Florida.

The court found that the phrase “ordinarily resident” embodied the concept that the person’s customary mode of life had to be examined; it did not cover a person’s special, occasional or casual residence.  This took into account the ordinary mode of living, and its “accessories” in terms of social relations, interests or conveniences at that particular location.

In this case, the husband was “ordinarily resident” in Ontario for the 12 months immediately prior to the wife’s divorce claim.  Noting that the husband’s own evidence on the point was inconsistent, and that he had failed to provide any documentation (such as driver’s license or proof of health coverage) which would show that he had moved to Florida.  Furthermore, his most recent affidavit asked the court to allow him to live in Ontario with the children.

Ultimately, the court found that – despite having visited or stayed in Florida on a few occasions in 2011 – the husband was ordinarily resident in Ontario at the material times.

As an aside, the court also had to contend with the husband’s conflicting and contradictory evidence relating to the date of the parties’ separation.   The husband’s evidence on this point was scattershot and inconsistent as well.  As to the husband’s credibility, the court wrote:

Although it is not necessary to my decision, I make a specific finding of credibility against the Respondent [the husband]. According to the real estate lawyer who handled the transfer from the Respondent to his mother in September 2010, the Respondent told him that he and his wife had separated long before she came to [the Toronto condo] and therefore it was not a matrimonial home. In so saying the Respondent withheld material information from the lawyer as to the family living arrangements, marriage counseling and final date of separation. … The Respondent made no reference to or any explanation whatsoever of the statements attributed to him by the lawyer.  In these circumstances it is, in my view in the interest of justice to draw an inference and make an adverse finding of credibility against him …

Next, the court had to grapple with the issue of whether the Ontario court or the Florida court was the most appropriate forum in which to have the trial itself.  (Procedurally the court has a right, in cases where another forum is more appropriate – after taking into account the location of the parties, the witnesses, the evidence, and various other procedural and geographical factors – to decline to exercise its jurisdiction to hear any court matter).    
In this case, the wife and children now lived in Florida, and the husband had visited them there on a few occasions.   In these circumstances, it would be unusual for an Ontario court to maintain jurisdiction over custody issues when the children were not even living there.    On the other hand, certain key witnesses and the grandmother (who would give evidence on issues relating to the matrimonial home) all lived in Ontario.  The Ontario court also had a certain legal advantage over the Florida court, in terms of the orders it was entitled to make.

In the end, the court ordered that:

• the Toronto condo was deemed to be a “matrimonial home”;

• title to the deceased’s father’s condo, which had been transferred to the mother, was revested into the husband’s name; and

• since Ontario had the closer connection to the dispute, the court declined to allow the matter to be heard in Florida; rather it was ordered to proceed to trial before an Ontario court.

For the full-text of the decision, see:

Alcaniz v. Willoughby, 2011 ONSC 7045  http://canlii.ca/t/fp7nr

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit www.RussellAlexander.com